The Guantanamo case heard by the Supreme Court on Wednesday raises an important constitutional conflict that the Court will have to resolve.

On the one hand, the Constitution guarantees the privilege of habeas corpus for everyone, foreigners and citizens alike. The only way that can be changed is through constitutional amendment.

On the other hand, the Constitution vests in Congress the power to divest the federal courts of jurisdiction (i.e., power) to hear certain types of cases. In the Military Commissions Act, the Congress removed the jurisdiction of the federal courts to hear habeas corpus cases involving foreigners accused of terrorism.

So, the Supreme Court must decide whether the Congress can effectively cancel the constitutional protection of habeas corpus simply by removing the jurisdiction of the courts to hear such cases.

My hunch is that given the long-enshrined established history of habeas corpus as a protection against tyranny, the Court is going to rule in favor of habeas corpus.

What should concern everyone, however, is the contempt that both the president and the Congress have shown for the federal judiciary. The reason that the president persuaded the then-Republican-controlled Congress to remove the power of the courts to hear habeas corpus cases was precisely because he didn’t like the Supreme Court’s ruling that its jurisdiction extended to the Pentagon’s prison camp at Guantanamo Bay, Cuba.

Don’t forget that the only reason that the president and the military established their prison camp in Cuba was to avoid the application of the Constitution and the interference of the federal courts. They wanted to establish an independent, alternative “judicial system” that they considered would be better than the one that the Framers established in the Constitution — one where they could torture and sexually abuse suspected terrorists to their heart’s content and then execute them after conducting a rigged, kangaroo hearing.

So, when the Supreme Court struck down those plans in the case of Rasul vs. Bush, the president and the Pentagon were outraged. That’s when they went to the Congress and secured passage of a law that purported to take away the power of the Supreme Court and the federal judiciary to interfere with the Pentagon’s Cuban operations.

Every American should be indignant. This is our Constitution, and the federal judiciary is an essential part of that Constitution. It is the judiciary that has the power to protect our lives, liberty, and property by declaring acts of Congress and actions of the president in violation of the Constitution. After all, don’t forget that the Congress and the president are the biggest threats to our freedom. Our ancestors didn’t mention Congress in the First Amendment for nothing.

Moreover, don’t forget that if the president and the Congress are able to cancel habeas corpus for foreigners that easily, they can just as easily do the same with Americans. And that would enable the president and the military to do what their partner and ally Pervez Musharraf is doing in Pakistan—jailing judges, lawyers, editors, and government critics without fear of judicial interference.

In fact, the contempt that the president and the Congress have shown toward the Supreme Court and the lower federal courts and toward criminal-defense lawyers representing clients at Guantanamo Bay is no different from the contempt that shown by the president’s partner and ally Pervez Musharraf in Pakistan. Resenting judicial interference with his “war on terrorism,” Musharraf simply dissolved the Supreme Court and jailed the judges who were ruling against him and the lawyers who were arguing against his positions. While Bush and the Congress haven’t gone that far, their removal of the power of the courts to interfere with their “war on terrorism” is based on the same contemptible feelings that Musharraf has toward the judiciary and legal profession.

Federal judicial interference in the “war on terrorism” and the Pentagon’s alternative, independent “judicial” system is absolutely necessary. President Bush has repeatedly said, “We don’t torture,” but most everyone has known he’s been lying. Yesterday, it was revealed that the CIA knowingly, deliberately, and intentionally destroyed videotapes of its torture of terrorist suspects in its custody. Will President Bush and his new attorney general seek indictments for this? Don’t count it. My hunch is that they will simply continue to mouth their standard mantra “We don’t torture … and there are no videotapes in existence to show the contrary.”

Meanwhile, the Pentagon continues to operate its kangaroo courts at Guantanamo Bay, where suspects are presumed guilty, lawyers can’t subpoena witnesses or confront witnesses, incriminating evidence adduced by torture is admissible into evidence, lawyers can’t discuss secret evidence with their clients, and proceedings are conducted in secret.

Recently, one lawyer was told by the judge that his request to subpoena witnesses held in custody for the trial of his client came too late. Yet, the judge had never set a deadline for such a request. In other words, the rules are made up as they go along, according to the feelings of the presiding judge, who is a military officer whose career depends on pleasing the Pentagon and the president. The defense lawyer put it succinctly: “We get to the hearing and find we haven’t complied with a rule we didn’t know of. How is that in the interests of justice?”

Hopefully, the Supreme Court might yet put the quietus to all these Soviet-like operations. This is not what America is supposed to be all about. This is what the Soviet Union was all about — and what Red China, North Korea, and Cuba are all about.

Wouldn’t it be great though if there were a reawakening among the American people themselves — one in which they rediscovered their heritage of liberty and the principles of the Constitution and the Bill of Rights — a reawakening in which people restored the principles of a constitutional republic to our land, including the recognition of how important an independent federal judiciary and criminal-defense bar is to our liberty?

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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education.
He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at
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Jacob G. Hornberger

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.